Griffith v. Drew's LLC ( 2015 )

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The entire amount of Valpak’s payments to Direct Marketing
was taxable under § 056.05A, because those payments consti-
tuted purchases of labor and, in some cases, creative talent for
work on advertising materials. The regulation speaks of taxes
generally and does not differentiate between sales and use
taxes. See id. However, it is well established that if an “item is
purchased in Nebraska, the sales tax applies. If the item is pur-
chased outside of Nebraska, the use tax applies.” See Interstate
Printing Co. v. Department of Revenue, 236 Neb. 110, 119, 459
N.W.2d 519, 526 (1990). Accordingly, the taxes imposed on
Valpak’s purchases from Direct Marketing, a Florida business,
were properly classified as use taxes.
Under § 056.05A, Valpak was required to pay use taxes
on the payments it made to Direct Marketing. Therefore, the
district court did not err by upholding the assessment of such
taxes on those payments.
CONCLUSION
For the foregoing reasons, we find no error on the record
in the district court’s conclusion that under § 056 of the
Department’s regulations, Valpak was an advertising agency
and was liable for use taxes on its payments to Direct
Marketing. Therefore, we affirm the judgment of the district
court which affirmed the decision of the Tax Commissioner to
deny Valpak’s petitions for redetermination.
Affirmed.
Heavican, C.J., participating on briefs.
Thomas R. Griffith and Heather Griffith,
appellees, v. Drew’s LLC, appellant.
___ N.W.2d ___
Filed March 27, 2015. No. S-14-456.
1. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the party’s brief.
2. Courts: Appeal and Error. The district court and higher appellate courts gener-
ally review appeals from the county court for error appearing on the record.
Nebraska Advance Sheets
GRIFFITH v. DREW’S LLC 509
Cite as 290 Neb. 5083. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
4. ____: ____. In instances when an appellate court is required to review cases for
error appearing on the record, questions of law are nonetheless reviewed de novo
on the record.
5. Trial: Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict, which an appellate court
will not disturb on appeal unless clearly wrong. And an appellate court does not
reweigh the evidence but considers the judgment in the light most favorable to
the successful party and resolves evidentiary conflicts in favor of the success-
ful party.
6. Real Estate: Property: Annexation. Whether an article annexed to the real
estate has become a part thereof is a mixed question of law and fact.
7. Damages. While the amount of damages presents a question of fact, the proper
measure of damages presents a question of law.
8. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
9. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse of discretion.
10. Deeds: Merger. The rule or doctrine of merger is that upon the delivery and
acceptance of an unambiguous deed, all prior negotiations and agreements are
deemed merged therein. This rule is equally applicable where prior oral negotia-
tions result in a written contract.
11. Deeds: Merger: Fraud. The doctrine of merger does not apply where there has
been fraud or mistake.
12. Fraud. Where one has a duty to speak, but deliberately remains silent, his or her
silence is equivalent to a false representation.
13. ____. In fraudulent concealment cases, existence of a duty to disclose the fact
in question is a matter for the determination of the court, although, if there are
disputed facts bearing upon the existence of the duty, they are to be determined
by the trier of fact under appropriate instructions as to the existence of the duty.
14. ____. Justifiable reliance must be decided on a case-by-case basis.
15. Actions: Fraud. Where ordinary prudence would have prevented a deception, an
action for the fraud perpetrated by such deception will not lie.
16. Real Estate: Property: Words and Phrases. Fixtures are usually thought of as
personal property which has become a part of the real estate, but a trade fixture
is defined as personalty.
17. Real Estate: Property: Appurtenances: Words and Phrases. Trade fixtures are
articles annexed to the realty by a tenant for the purpose of carrying on trade and
are ordinarily removable by him during his term.
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18. Real Estate: Property: Appurtenances. In determining whether an article
annexed to real estate has become a part of the real estate, a court should consider
(1) actual annexation to the realty or something appurtenant thereto; (2) appro-
priation to the use or purpose of that part of the realty with which it is connected;
and (3) the intention of the party making the annexation to make the article a
permanent accession to the freehold, said intention being inferred from the nature
of the articles affixed, the relation and situation of the party making the annexa-
tion, the structure and mode of annexation, and the purpose or use for which the
annexation has been made.
19. ____: ____: ____. The second component of the test to determine whether an
article annexed to real estate has become a part of the real estate focuses on
whether a chattel is specific to the type of business conducted on realty, or on
whether it is the type of property that would generally be found on realty and that
would have utility to a hypothetical purchaser of the underlying realty.
20. Courts: Real Estate: Property: Words and Phrases. It is incumbent on the
court to define a fixture, but whether an article of property is a fixture in a par-
ticular instance depends upon the facts of that case.
21. Real Estate: Property: Damages. The rule that the measure of damages for fix-
tures is the difference in value of the real property before and after the removal
of the articles is not an exclusive rule.
22. Real Estate: Sales: Property: Valuation: Damages. Fixtures ordinarily have a
value separate and apart from the realty to which they are attached. That value
may properly be submitted to the fact finder to enable it to more accurately deter-
mine a loss suffered by a purchaser.
23. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
24. Evidence: Proof. For evidence to be relevant, all that must be established is a
rational, probative connection, however slight, between the offered evidence and
a fact of consequence.
25. Trial: Testimony. The weight to be given a witness’ testimony is a question for
the trier of fact.
26. Trial: Evidence: Records: Appeal and Error. The erroneous admission of
evidence in a bench trial is not reversible error if other relevant evidence, prop-
erly admitted, sustains the trial court’s necessary factual findings; in such case,
reversal is warranted only if the record shows that the trial court actually made a
factual determination, or otherwise resolved a factual issue or question, through
the use of erroneously admitted evidence.
Appeal from the District Court for Custer County, Karin L.
Noakes, Judge, on appeal thereto from the County Court for
Custer County, Tami K. Schendt, Judge. Judgment of District
Court affirmed.
Nebraska Advance Sheets
GRIFFITH v. DREW’S LLC 511
Cite as 290 Neb. 508Matthew S. McKeever, of Copple, Rockey, McKeever &
Schlecht, P.C., L.L.O., for appellant.
Christopher P. Wickham, of Sennett, Duncan, Jenkins &
Wickham, P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
After two buyers closed on their purchase of a building
that had formerly been leased as a dental clinic, they discov-
ered that the interior doors had been removed. They sued the
seller. The county court entered judgment for the buyers and
awarded damages based on the cost they paid for replacement
doors. The district court affirmed. Upon further appeal, we
conclude that the doctrine of merger did not bar their claim
and that the doors were fixtures rather than trade fixtures.
We affirm.
BACKGROUND
For ease of understanding, we generally refer to the parties
as “the buyers” and “the seller” throughout this opinion. But
for the sake of completeness, we identify the respective par-
ties. The buyers, Thomas R. Griffith and Heather Griffith, pur-
chased the real estate from the seller, Drew’s LLC. The seller’s
sole member was Andrew Solomon. Although we recognize
that this business entity is a legal entity separate and distinct
from its member, for purposes of this opinion, we will refer
to the business entity and its member interchangeably as “the
seller.” The buyers and the seller signed a purchase agreement
on February 8, 2012.
The seller had previously renovated the building for use as a
dental clinic. Through May 2012, the seller leased the property
to a dental practice owned by the seller’s wife (former ten-
ant). The former tenant began operating at a new location in
January 2012.
The buyers planned to transform the building into their
personal residence. The buyers first viewed the interior of
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the property with the seller in approximately November
2011. At that time, the dental practice was still operating in
the building.
The buyers also viewed the property after the dental practice
had relocated. The buyers could not recall the exact date of the
visit, but one of the buyers testified that “[i]t was between the
February date and the closing date.” Presumably, “the February
date” referred to the date of the purchase agreement. Although
the dental equipment was no longer in the building, the interior
doors remained.
The parties never discussed whether the interior doors would
stay with the property. At no time did the seller state that
the doors were excluded from the purchase agreement. The
seller and the former tenant removed the doors on Memorial
Day 2012.
The parties closed on the property on June 1, 2012. The
buyers did not inspect the property within the 24-hour period
immediately before the closing, even though the purchase
agreement would have permitted them to do so. After clos-
ing, one of the buyers discovered that the interior doors had
been removed. Although the buyers requested that the doors be
returned, the seller refused.
The buyers commenced a small claims action against
the seller. They alleged that the interior doors were fixtures
included in the purchase, and they sought damages or the
return of the property. The seller transferred the matter to the
regular civil docket of the county court. In an answer, the seller
asserted that the items of property were trade fixtures. The
seller also affirmatively alleged that the claim was barred by
the doctrine of merger.
The county court, without a jury, conducted a trial. Evidence
established that the doors were commercial, 60-minute-rated
fire doors. The former tenant had purchased and installed the
interior doors in 2004. The seller testified that the doors were
in good, used condition and that they had “scuffing” and “a
couple had dents.”
In replacing the doors, the buyers did not purchase the same
type of door. Instead, they purchased residential doors that
were not fire rated. These prehung, unfinished, solid-core oak
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approximately $35 each.
The buyers obtained a quote from a lumber company for
doors similar to those removed. The company’s manager pre-
pared an estimate for a new “90-minute fire door, flush oak,
. . . a solid core slab door with the gypsum core, typically
used in commercial applications.” The estimate included the
cost “to machine the door to specifications of the existing
frame.” In preparing the estimate, the manager took informa-
tion from the buyers, called a door manufacturer to obtain a
price, and then added the lumber company’s general markup.
He had never seen the doors at issue. He testified that his
estimate, received in evidence over the seller’s relevance and
foundation objections, was an estimate commonly used in the
business. Over the seller’s objection, the manager testified
that he quoted a per-door price of $380 plus a $39 “hinge and
knob match.”
The seller presented contrary evidence regarding the value
of the doors. A construction worker in the area, who had famil-
iarity with prices paid by contractors, examined the doors and
opined that the doors were not worth $270 each. He felt that
$75 would “be the going price,” but that they were possibly
worth even less due to their weight.
The county court entered judgment in favor of the buyers.
The court found that the interior doors were not trade fixtures
as defined by Neb. Rev. Stat. § 77-105 (Cum. Supp. 2014).
The court also determined that an exception to the doctrine
of merger existed due to fraud and misrepresentation by the
seller. The court found that the buyers replaced 12 doors and
that the cost of replacement was $250 per door plus $35 per
doorknob. The court entered judgment against the seller in the
amount of $3,420, plus costs.
The seller appealed to the district court, and the district
court affirmed. The district court reasoned that the doors were
not trade fixtures because “doors are not fixtures used directly
in the field of dentistry” and that the doctrine of merger did
not apply because the buyers pursued the action based on mis-
representation under the law of torts and not as an action on a
contract. The district court determined that the county court’s
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findings were not clearly erroneous and that the evidence sup-
ported the county court’s award of damages.
The seller timely appeals. We moved the case to our docket
under our statutory authority to regulate the caseloads of the
appellate courts of this state.1
ASSIGNMENTS OF ERROR
The seller assigns 17 errors. It alleges, consolidated and
restated, that the county court erred in (1) failing to apply the
doctrine of merger, (2) failing to find that the doors were trade
fixtures owned by the former tenant, (3) determining damages,
and (4) overruling the seller’s evidentiary objections.
[1] The seller also assigns that the county court erred in
finding that an appraisal was done, at which time the appraiser
observed the doors; in finding that the buyers were damaged
by any misrepresentations; in finding that a duty existed to dis-
close that the interior doors belonged to the former tenant and
were going to be removed prior to the transfer of the deed, and
in overruling the seller’s foundational objections to testimony
regarding whether the dental practice had moved. However, the
seller’s brief contains no corresponding argument concerning
these alleged errors. To be considered by an appellate court,
an alleged error must be both specifically assigned and specifi-
cally argued in the party’s brief.2 Thus, we do not consider the
errors assigned but not argued in the seller’s brief.
STANDARD OF REVIEW
[2-4] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record.3 When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.4 In instances when an
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844
N.W.2d 755 (2014).
3
Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013).
4
Id.Nebraska Advance Sheets
GRIFFITH v. DREW’S LLC 515
Cite as 290 Neb. 508appellate court is required to review cases for error appearing
on the record, questions of law are nonetheless reviewed de
novo on the record.5
[5] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict, which an appellate
court will not disturb on appeal unless clearly wrong. And
an appellate court does not reweigh the evidence but consid-
ers the judgment in the light most favorable to the successful
party and resolves evidentiary conflicts in favor of the success-
ful party.6
[6] Whether an article annexed to the real estate has become
a part thereof is a mixed question of law and fact.7
[7] While the amount of damages presents a question of fact,
the proper measure of damages presents a question of law.8
[8,9] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.9 The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision
regarding relevance will not be reversed absent an abuse
of discretion.10
ANALYSIS
The seller principally contends that the doors were trade
fixtures. But it also relies upon the doctrine of merger. If that
doctrine applies, we would not need to determine the char-
acter of the doors as fixtures or trade fixtures. Thus, we first
address the argument pertaining to merger.
5
Id.6
Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 285 Neb. 157, 825
N.W.2d 779 (2013). See, also, Dammann v. Litty, 234 Neb. 664, 452
N.W.2d 522 (1990).
7
Swift Lumber & Fuel Co. v. Elwanger, 127 Neb. 740, 256 N.W. 875(1934).
8
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
9
Hike v. State, 288 Neb. 60, 846 N.W.2d 205 (2014).
10
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Doctrine of Merger
[10,11] The rule or doctrine of merger is that upon the
delivery and acceptance of an unambiguous deed, all prior
negotiations and agreements are deemed merged therein. This
rule is equally applicable where prior oral negotiations result in
a written contract.11 However, the doctrine of merger does not
apply where there has been fraud or mistake.12
The county court applied the exception based upon the
seller’s fraud and misrepresentation. The court reasoned that
the buyers had a reasonable belief the interior doors were part
of the purchase agreement and that their belief was reinforced
when the doors remained after the purchase agreement had
been signed and the dental practice had relocated. The court
determined that the failure to disclose that the doors belonged
to the former tenant and would be removed amounted to a
misrepresentation and a fraud.
[12] Where one has a duty to speak, but deliberately
remains silent, his or her silence is equivalent to a false repre-
sentation.13 Although the circumstances of each case typically
determine whether a duty to disclose exists, there are several
situations which have been consistently recognized as creating
a duty to disclose.14 Those situations have been set forth in the
Restatement (Second) of Torts.15 The Restatement recognizes
a duty to disclose “facts basic to the transaction” if a party to
the transaction “knows that the other is about to enter into it
under a mistake as to them, and that the other, because of the
relationship between them, the customs of the trade or other
objective circumstances, would reasonably expect a disclosure
of those facts.”16 The Restatement also acknowledges a duty
11
Beltzer v. Willeford Farms, 215 Neb. 102, 337 N.W.2d 406 (1983).
12
Newton v. Brown, 222 Neb. 605, 386 N.W.2d 424 (1986).
13
Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 (2000),
overruled in part on other grounds, Knights of Columbus Council 3152 v.
KFS BD, Inc., 280 Neb. 904, 791 N.W.2d 317 (2010).
14
Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb. 997,
792 N.W.2d 484 (2011).
15
See Restatement (Second) of Torts § 551 (1977).
16
Id., § 551(2)(e) at 119.
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Cite as 290 Neb. 508to disclose “matters known to him that he knows to be neces-
sary to prevent his partial or ambiguous statement of the facts
from being misleading.”17
[13] In fraudulent concealment cases, existence of a duty to
disclose the fact in question is a matter for the determination
of the court, although, if there are disputed facts bearing upon
the existence of the duty, they are to be determined by the trier
of fact under appropriate instructions as to the existence of the
duty.18 But, here, the facts are essentially undisputed. Thus, we
review the question as a matter of law and make an indepen-
dent determination.
Under the circumstances of this case, we agree that a duty
to disclose existed. Like windows, interior doors located within
a property are customarily included with a real estate pur-
chase. Their inclusion is assumed, and one would not expect
a purchase agreement to explicitly state that they are included.
Thus, if the seller did not intend to include the doors—con-
trary to ordinary experience—that information should have
been disclosed.
[14,15] The seller responds that the buyers’ reliance was
not justified. Justifiable reliance must be decided on a case-
by-case basis.19 Where ordinary prudence would have pre-
vented the deception, an action for the fraud perpetrated by
such deception will not lie.20 Here, the buyers inspected the
property, both before and after the dental practice had relo-
cated. At the time of the second inspection, the dental equip-
ment had been removed but the doors remained. It would not
be obvious to anyone that the doors would be removed later.
At that point, the building’s appearance conveyed the message
that the trade fixtures had been removed and all that remained
was property included in the sale. From that time forward,
the seller had the duty to disclose its intention to remove the
interior doors.
17
Id., § 551(2)(b) at 119.
18
Zawaideh v. Nebraska Dept. of Health & Human Servs., supra note 14.
See, also, Restatement, supra note 15, comment m.
19
Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d 671 (2009).
20
Bibow v. Gerrard, 209 Neb. 10, 306 N.W.2d 148 (1981).
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We conclude that the evidence in this case supports the
county court’s conclusion that the buyers reasonably relied
on the misrepresentation. Thus, the doctrine of merger did not
prevent the seller from being liable for its misrepresentation.
Fixture or Trade Fixture?
[16,17] The principal question in this appeal is whether
the doors were fixtures or trade fixtures. Fixtures are usually
thought of as personal property which has become a part of the
real estate, but a trade fixture is defined as personalty.21 Trade
fixtures are articles annexed to the realty by a tenant for the
purpose of carrying on trade and are ordinarily removable by
him during his term.22
The seller asserts that the county court erred in relying upon
a definition of a trade fixture found within Nebraska’s revenue
and taxation statutes.23 Section 77-105 states in pertinent part,
“The term tangible personal property also includes trade fix-
tures, which means machinery and equipment, regardless of
the degree of attachment to real property, used directly in com-
mercial, manufacturing, or processing activities conducted on
real property, regardless of whether the real property is owned
or leased.” While this description may have some utility as
persuasive authority, the more sound approach is to look to the
common law and the test developed thereunder.
Determining whether an item is a fixture or a trade fixture
can be a difficult task. “[W]hile the general principles appli-
cable to the question of trade fixtures are well settled, the
courts have experienced much difficulty in applying them to
variant fact situations, and as a result, it may be said that what
constitutes a ‘trade fixture’ depends on the facts of the particu-
lar case.”24
[18] Long ago, we set forth a test to assist in the determina-
tion of whether an article annexed to real estate has become
a part of the real estate. In determining the question, a court
21
See Frost v. Schinkel, 121 Neb. 784, 238 N.W. 659 (1931).
22
Id.23
See § 77-105.
24
36A C.J.S. Fixtures § 37 at 316 (2014).
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Cite as 290 Neb. 508should consider (1) actual annexation to the realty or some-
thing appurtenant thereto; (2) appropriation to the use or pur-
pose of that part of the realty with which it is connected; and
(3) the intention of the party making the annexation to make
the article a permanent accession to the freehold, said inten-
tion being inferred from the nature of the articles affixed, the
relation and situation of the party making the annexation, the
structure and mode of annexation, and the purpose or use for
which the annexation has been made.25
[19] We apply the three-part test to resolve the question.
First, the doors were attached to doorframes, which were then
affixed to the building. We have previously stated that doors
are a part of the real estate, even though they are often hung
but not fastened to a building.26 Second, the doors were reason-
ably necessary for the purposes for which the real estate was
being used—they served to divide the interior of the building
and to enclose rooms, supplying privacy.
The second part of the test focuses on whether a chattel
is specific to the type of business conducted on realty, or
on whether it is the type of property that would generally
be found on realty and that would have utility to a hypo-
thetical purchaser of the underlying realty.27
The parties stipulated that fire doors were required in the
building under a building code applicable to new health care
occupancies, but doors are not specific to a dental practice
and are the type of property that would be useful to any pur-
chaser of the realty. Third, permissible inferences support a
conclusion favorable to the buyers as to the former tenant’s
intent. The record establishes that the former tenant, owned
and operated by the seller’s wife, had the doors installed in a
building owned by the seller. Given this relationship between
tenant and landlord, the county court could reasonably infer
that the former tenant intended to make the doors a permanent
part of the real estate. We agree with the courts below that the
25
See Swift Lumber & Fuel Co. v. Elwanger, supra note 7.
26
Frost v. Schinkel, supra note 21.
27
35A Am. Jur. 2d Fixtures § 34 at 708 (2010).
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doors were fixtures rather than trade fixtures. Consequently,
the law did not permit the former tenant to remove them.
[20] It is incumbent on the court to define a fixture, but
whether an article of property is a fixture in a particular
instance depends upon the facts of that case.28 And under the
facts of this case, we conclude the county court’s determina-
tion that the doors were not trade fixtures conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
Damages
The county court based its award of damages on the cost
to replace the doors. The seller makes two primary argu-
ments related to the county court’s determination and award
of damages.
First, the seller argues that the county court erred in failing
to use the proper formula for damages. The seller suggests that
the proper measure of damages is the difference between the
value of the property conveyed and the value of the property
if it had been as represented.29 The seller also directs us to a
Nebraska jury instruction indicating that the measure of dam-
ages for breach or misrepresentation in a contract for sale of
property is the lesser of the reasonable cost of placing the prop-
erty in the condition warranted or the value the property would
have had were it in the condition it had been warranted to be
in, minus its actual value.30
[21,22] The rule that the measure of damages for fixtures is
the difference in value of the real property before and after the
removal of the articles is not an exclusive rule.31 “The primary
object is to determine the amount of the loss. Whatever rule is
best suited to that determination should be followed. The recov-
ery must be reasonable having its basis in a proper consider-
ation of all relevant facts.”32 Fixtures ordinarily have a value
28
See Hurst v. Furniture Company, 95 S.C. 221, 78 S.E. 960 (1913).
29
See Bibow v. Gerrard, supra note 20.
30
See NJI2d Civ. 4.49.
31
Joiner v. Pound, 149 Neb. 321, 31 N.W.2d 100 (1948).
32
Id. at 327, 31 N.W.2d at 104.
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Cite as 290 Neb. 508separate and apart from the realty to which they are attached.
That value may properly be submitted to the fact finder to
enable it to more accurately determine the loss suffered by the
purchaser.33 “The replacement cost may more accurately reflect
the loss than opinion evidence as to the difference in value
of the real estate before and after the removal.”34 Here, there
was no damage to the building itself caused by removal of the
doors. The cost of replacing the property appears to be a more
appropriate measure of damages under the circumstances. We
find no error in the court’s use of the cost of replacement doors
and doorknobs.
Second, the seller argues that the county court erred in fail-
ing to give appropriate weight to the opinion of the seller’s
expert. Determining the weight that should be given expert tes-
timony is uniquely the province of the fact finder.35 It appears
that the county court gave little weight to the testimony of the
seller’s expert, and we find no error in that regard.
Evidentiary Issues
The seller also argues that the county court abused its dis-
cretion in two evidentiary rulings. First, it argues that the court
improperly allowed testimony regarding the cost of replace-
ment doors that were residential, and not commercial, fire-
rated doors. Second, it contends that an exhibit should not have
been received. We find no merit in either argument.
[23] As we have already noted, we review the trial court’s
relevancy determinations for abuse of discretion. Relevant evi-
dence means evidence having any tendency to make the exis-
tence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.36
[24,25] The testimony regarding the cost of residential doors
had at least a minimal relationship to the replacement cost of
commercial, fire-rated doors. The seller claims that because
33
See Joiner v. Pound, supra note 31.
34
Id. at 327, 31 N.W.2d at 104.
35
Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009).
36
ConAgra Foods v. Zimmerman, 288 Neb. 81, 846 N.W.2d 223 (2014).
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522 290 NEBRASKA REPORTS
the removed doors were commercial, fire-rated doors, testi-
mony regarding the value of residential doors was irrelevant.
For evidence to be relevant, all that must be established is a
rational, probative connection, however slight, between the
offered evidence and a fact of consequence.37 As we have
already observed, replacement cost was a proper consideration
in assessing damages. According to the testimony, the com-
mercial doors were heavier and were fire rated. The residential
doors weighed less and were not fire rated. The county court,
as the finder of fact, was certainly not required to accept
this testimony as conclusive. But the testimony had at least
a minimal bearing on the amount of the loss. The court had
before it different opinions as to the question of damages and
was informed about the difference between the replacement
doors and the doors actually removed. Nonetheless, the court
accepted testimony of one of the buyers as to damages. The
weight to be given a witness’ testimony is a question for the
trier of fact.38 We cannot say that the court abused its discretion
in admitting this evidence.
The seller also maintains that the lumber company’s man-
ager “was not qualified or noticed as an expert,”39 that he based
his testimony as to the value of the doors upon hearsay and had
never viewed the doors, and that the court abused its discretion
in receiving into evidence the witness’ estimate.
[26] Even assuming, without deciding, that the county court
abused its discretion in receiving this testimony and exhibit,
there is no reversible error. The erroneous admission of evi-
dence in a bench trial is not reversible error if other relevant
evidence, properly admitted, sustains the trial court’s necessary
factual findings; in such case, reversal is warranted only if the
record shows that the trial court actually made a factual deter-
mination, or otherwise resolved a factual issue or question,
through the use of erroneously admitted evidence.40 The county
37
Id.38
See Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
39
Brief for appellant at 15.
40
In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006).
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STATE v. BRANCH 523
Cite as 290 Neb. 523court computed damages based on testimony of one of the
buyers regarding the cost paid for replacement doors. Because
there is no indication that the court relied upon the other wit-
ness’ testimony or estimate, any error in the court’s decision to
receive such evidence was harmless.
CONCLUSION
We conclude that the doctrine of merger was inapplicable,
because the seller had a duty to disclose that the interior doors
would be removed and the seller’s nondisclosure amounted
to a misrepresentation. We further conclude that the doors
were fixtures rather than trade fixtures and, thus, were not
removable by the former tenant. Because the county court’s
award of damages is supported by competent evidence, we
affirm the decision of the district court affirming the county
court’s judgment.
Affirmed.
State of Nebraska, appellee, v.
James Branch, appellant.
___ N.W.2d ___
Filed March 27, 2015. No. S-14-711.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Evidence: Witnesses. In an evidentiary hearing for postconvic-
tion relief, the postconviction trial judge, as the trier of fact, resolves conflicts in
evidence and questions of fact, including witness credibility and the weight to be
given a witness’ testimony.
3. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s per­
formance or prejudice to the defendant as part of the two-pronged test articulated
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), an appellate court reviews such legal determinations independently of the
lower court’s decision.